Iqbal Muhammad v. Torture Claims Appeal Board

HCAL 3539/2019

[2025] HKCFI 4505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3539 OF 2019

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1.      The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 29 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 25 October 2019 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003539_2019_files/the_Board's_Decision.pdf

2.The Board determined that the applicant was not at risk whatsoever.  There was no Persecution Risk[1], BOR 3 Risk[2] or BOR 2 Risk[3] for the applicant under the Unified Screening Mechanism (“the USM”).  In any event, internal relocation was a reasonable and practicable option for him.  Hence, the Board rejected the applicant’s claim for non-refoulement protection and confirmed the decision of the Director of Immigration (“the Director”) dated 10 August 2018 (“the Director’s 2^nd Decision”).

3.The applicant made a torture claim previously in 2007, which was rejected by the Director on 16 November 2012 (“the Director’s 1^st Decision”).  The applicant did not file any appeal against the Director’s 1^st Decision.  Thus, the applicant’s Torture Risk[4]had been finally determined and it was not necessary for the Board to re-assess the applicant’s Torture Risk in the Board’s Decision.

The applicant’s case

4.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

5.In sum, the applicant claimed for non-refoulement protection because if returned to Pakistan, he would be at risk of serious harm or even be killed by his cousin Haq Nawaz (“HN”) and his associates (collectively referred to as “the Enemies”) as HN coveted the applicant’s farmland and had tried to grab it away from him.  HN had close associations with influential and powerful politicians belonging to the Pakistan Muslim League (Nawaz) (“PMLN”) who protected him and so he was able to act with impunity.  HN and his brother Mohammad Ali were both dangerous criminals and they were backed up by their gangster associates.  The Enemies had repeatedly shot at the applicant and framed him up with false criminal charges. The Enemies had also attempted to assault the applicant.

Oral hearing

6.The applicant requested for an oral hearing of the Leave Application.  However, he was absent at the oral hearing on 6 August 2025.

7.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application.  The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

8.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

10.However, the applicant failed to advance any grounds for his intended judicial review in Form 86.

11.The applicant annexed to his supporting affirmation dated 28 November 2019 a page of handwritten document with the title “APPEAL GROUNDS”.  In the document, he asserted 3 grounds for his intended judicial review, which are summarised as follows:

(1)   He has political problem in his country.  Pakistan is a paradise place of terrorists.

(2)   Terrorists have no real political party.  They always support the ruling party.  He was always stay for the public.

(3)   He married a Hong Kong resident girl.

Discussion

12.First of all, the problems that the applicant presented to the Board were unrelated to any political problems and terrorist activities in Pakistan.  As mentioned above, his fear of returning to Pakistan arose from a land dispute only.

13.As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

14.Further, as held in Nupur Mst v Director of Immigration[2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

15.Thus, the applicant cannot rely on matters that were not raised before the Board for its consideration and assessment to challenge the Board’s Decision.

16.The fact that he married a Hong Kong resident is unrelated to his non-refoulement claim and is not a ground for judicial review at all.

17.Thus, all the grounds advanced by the applicant are not valid grounds for challenging the Board’s Decision.

18.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration, supra).

19.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

20.In assessing the appeal by the applicant, the Board scheduled an oral hearing on 4 September 2019, but the applicant was absent.  The Board then adjourned the oral hearing to 17 October 2019, and the applicant was present this time.  Thus, the applicant was given the chance to present his case to the Board in person.

21.The Board noted a special feature in the proceedings before the Director, in that the Director in making the Director’s 2^nd Decision excluded the prior documentary evidence from his consideration.  However, the Board in making the Board’s Decision took into consideration the documentary evidence previously excluded by the Director and gave detailed reasons for doing so.

22.As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, the appeal procedure from the Director to the Board “provided an opportunity for a complete review of the decision by the primary decision maker and that review is in the nature of a rehearing in the sense that it is not dependent an appellate error being demonstrated.  The appeal tribunal itself examines and considers all the materials and reaches its own view on the merits of the claim.  In doing so it will have regard to any additional materials the claimant may wish to place before it.”

23.Thus, the Board did have the right to consider all the evidence before it for the assessment of the applicant’s claim.

24.In considering the applicant’s case, the Board gave very full and detailed reasoning for its conclusion that the applicant was not a credible witness and his evidence was in general not credible.  The Board found as a compelling conclusion that the core parts of the applicant’s evidence were unworthy of belief and no credence whatsoever should be attached to the core elements of the applicant’s case.

25.Specifically, the Board did not accept the following core elements of the applicant’s evidence:-

(1)   the applicant had ever owned any land in Pakistan;

(2)   there was a land dispute between the applicant and the Enemies;

(3)   HN was a true, as opposed to fictitious, character;

(4)   HN had the back up of PMLN and politicians;

(5)   the truthfulness of the shooting incident near the applicant’s home, the false conspiracy case against him, the shooting incident near the sugar cane field, the false drug case against him and the incident of attempted assault on him;

(6)   any complaint had been made to the Pakistani police;

(7)   the applicant would be arrested by the Pakistani police upon his return to Pakistan;

(8)   the authenticity of the applicant’s supporting documents in the nature of police and court documents as well as documents in relation to his land ownership.

26.Thus, the Board did not accept that the applicant had been under any risk or danger while in Pakistan and that he would be exposed to any risk or danger upon his return to his home country in the near future.

27.Despite its finding above, the Board nevertheless went on to consider the availability of state protection and the viability of internal relocation for the applicant.

28.The Board found that the Enemies were obviously not state actors.  The applicant had not established complicity on the part of the state.  On the evidence and country of origin information (“COI”) before it, the Board found that there was a reasonable level of state protection for the applicant in Pakistan.

29.As to internal relocation, the Board agreed with the observation of the Director in the Director’s 2^nd Decision in relation to the issue of internal relocation.  The Board agreed that Islamabad and Karachi were viable options for the applicant’s internal relocation.  The option of internal relocation would not be unduly harsh or unreasonable for the applicant, and it was a safe and meaningful option for him.

30.Thus, the applicant’s alleged danger in returning to Pakistan was fully assessed but rejected by the Board.

31.The finding of facts was solely within the ambit of the Board.  The Board was entitled to make its decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

32.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

33.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

34.For reasons aforesaid, the Leave Application is dismissed.

Dated the 23^rdday of September 2025

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1